Delhi District Court
Hemant Garg vs Kamal Mahey Etc on 22 January, 2026
GARIMA IN THE COURT OF MS. GARIMA JINDAL,
JUDICIAL MAGISTRATE FIRST CLASS-06,NORTH, ROHINI
COURTS, DELHI
Digitally signed
by GARIMA
Date: CC.No. 9924/2016
2026.01.22
15:38:03 +0530 CNR No. DLNT020039262014
Hemant Garg
R/o C-4, Mahindra Park,
Adarsh Nagar,
New Delhi-110033 ... Complainant
VS.
1.Kamal Mahey S/o Sh. B R Mahey R/o 108, Samaj Kalyan Apartment, Vikaspuri, New Delhi-110018
2. Sushma Sapra W/o Sh. Ashok Sapra R/o E-63, Vishnu Garden, New Delhi
3. Usha Kiran Wig W/o Sh. S N Wig R/o 51, Maya Apartment, F Block, Vikaspuri New Delhi-110018
4. Usha Malhotra W/o Sh. Vinod Malhotra R/o BH-112, East Shalimar Bagh, New Delhi-110088 .... Accused persons Date of Institution : 14.10.2014 Offence complained of : u/s 138 N.I. Act Date of final arguments : 03.12.2025 Date of decision : 22.01.2026 Decision : Acquittal Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 1 of 10 GARIMA J U D G M E N T:
Digitally signed 1. Vide this judgment, I shall dispose the present complaint by GARIMA Date: filed under Section 138 N.I. Act against the accused persons. Before going 2026.01.22 15:38:08 +0530 further, it is necessary to dwell upon the brief facts of the case.
Brief facts:
2. In brief, the case of the complainant is that the complainant had shifted to Delhi from Ambala and started dealing in construction work and accused persons approached complainant for construction work at their property bearing no. 44, Block M, Vikaspuri, New Delhi (hereinafter referred to as the property in question), along with Mr. Sanjeev Kumar and for the said work, an MOU was signed between the complainant and accused persons on 14.06.2013 and on 08.07.2013, the accused persons received a sum of Rs. 10,00,000/- from the complainant against the NOC from the owner of the ground and first floor of the property in question. It was decided that in case the accused persons will not get NOC issued from the owners of the ground and the first floor then they will return the said amount to the complainant. It is further averred that since the accused persons could not fulfill the said requirement, they issued a cheque bearing no. 210669 dated 25.02.2014 amounting to Rs. 10 lakhs (hereinafter referred to as the cheque in question), in favour of the complainant. It is further averred that when the complainant presented the cheque in question with his bank for its encashment, the same was returned unpaid with the remarks "14-digit CBS A/c No. required". Thereafter, the complainant approached the accused persons and informed them about the fate of the cheque but accused persons did not pay any heed. Thereafter, the complainant also served a legal demand notice to the accused, which was duly served upon the accused but he failed to make the payment of the amount mentioned over the cheque in question within statutory period.
Hence, the present complaint was filed before this court.
3. Cognizance in the present complaint was taken against the accused persons. It is pertinent to mention here that the accused no.2 and 4 Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 2 of 10 GARIMA were discharged by the Ld. Predecessor of this court vide order dated 18.01.2023; trial was abated qua accused no. 3 as she had expired and the present case was prosecuted qua accused no. 1 - Kamal Mahey, only. Digitally signed Thereafter, notice u/s 251 Cr.P.C was framed against accused no. 1 by GARIMA Date: (hereinafter referred to as the accused) on 19.04.2023 wherein he denied the 2026.01.22 15:38:13 case of complainant and claimed trial. In his defence, the accused stated that +0530 the cheque in question was not given to the complainant in discharge of liability rather the same was given by him to the son of Usha Vij. He further stated that he has no liability towards the complainant. He further stated that he has not received the legal demand notice issued by the complainant.
4. Thereafter, matter was listed for complainant's evidence and to establish his case, complainant / Hemant Garg has examined himself as CW-1 and relied upon documents Ex.CW1/1 to Ex.CW1/13. He was duly cross examined by the Ld. counsel for the accused. The material facts that emerged during his cross examination, shall be dealt hereinunder, at the appropriate stage.
5. Statement of accused under section 313 Cr.P.C was recorded on 15.10.2025, wherein accused stated that he does not know the complainant and he has never taken a sum of Rs. 10 lakhs from the complainant. He further stated that the allegations leveled against him are false. He further stated that no MOU was ever entered into between him and the complainant. He further stated that he is not aware as to how the cheque in question landed in the hands of the complainant. He further stated that the cheque in question was neither signed by him nor does the same bear his handwriting in columns of different particulars. He further stated that he does not wish to lead DE. It is pertinent to mention here that thereafter, the matter was listed for final arguments and during the course of final arguments, it came to the notice of the undersigned that document Ex.CW1/DX-1 was not put to the accused inadvertently and hence, additional statement of the accused was recorded qua the said document wherein the accused stated that the said document does not bear his signatures.
Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 3 of 10GARIMA
6. Thereafter, after conclusion of trial, final arguments were addressed by Ld. Counsels for the parties, which have been duly considered Digitally signed by this court while passing the present judgment. by GARIMA Date: 2026.01.22 15:38:18 7. Ld. Counsel for the complainant submitted that the signatures +0530 of the accused on the cheque in question being not denied and the accused had not led any probable defence in the present matter to rebut the presumption under Section 139 N.I. Act, and thus, he should be convicted for offence under Section 138 N.I. Act. Certain contradictions in the case of accused were also mentioned by Ld. Counsel for complainant and it was argued that on the basis of documents including MOU and CW1/DX1, complainant has established his case beyond reasonable doubts. Lastly, it was argued that accused has not led any tenable evidence to prove his claims qua the cheque in question and hence, no ground is made out for his acquittal in the present case.
8. Contrary to this, it has been submitted by Ld. Defence counsel that the cheque in question was never issued by him in favour of the complainant and the same has been misused by the complainant. It is further argued that the accused has no legal liability towards the complainant, document Ex CW1/DX1 is a forged and fabricated document and prima facie case is not made out in favour of complainant in the present case. It is further argued that application for condonation of delay was never allowed by the court and the returning memo issued by the banker was in favour of Anukampa Garg, i.e., the wife of complainant and not the complainant himself, making the prosecution u/s 138 NI Act implausible. No explanation has been afforded for existence of 2 returning memos and tampering in one of the said return memos. It is further argued that even as per the documents filed by complainant, notwithstanding their veracity, accused has liability towards the wife of complainant and not towards the complainant. No proof qua delivery of legal demand notice has been placed on record. Accused is not a party to the MOU executed between complain ant and accused no. 2 to 4 , shaking the very foundation of complainant's case. It is lastly argued by Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 4 of 10 GARIMA Ld. Counsel for Accused that since the accused has disproved the existence of liability by way of preponderance of probabilities, he should be acquitted Digitally signed for offence under Section 138 of NI Act. by GARIMA Date:
2026.01.22 15:38:27 The Law:
+0530
9. Before proceeding to the merits of the case, it is considered important to enumerate the basic provisions of law with respect to section 138 of the Act which are as follows: -
10. Section 138 of Negotiable Instruments Act, 1881 makes dis-
honour of cheques an offence. It provides that " where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the dis- charge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both".
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its va- lidity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giv-
ing a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 5 of 10GARIMA Explanation. -- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability.
Digitally signed by 11. Careful reading of section 138 of the Act reflects that there GARIMA Date: are five key ingredients which need to exist for there to be an offence under 2026.01.22 15:38:32 section 138 Negotiable Instruments Act, 1881. The ingredients for require- +0530 ments of section 138 are as follows:
a) There is a legally enforceable debt;
b) The drawer of the cheque issued the cheque to satisfy part or whole of the debt;
c) The cheque so issued has been returned due to insufficiency of funds/ exceeds insufficient;
d) Legal demand notice was issued by the payee of the cheque within 30 days of dishonor of the cheque; and
e) The drawee of the cheque has failed to make the payment of the cheque amount within 15 days of the receipt of the legal demand no-
tice.
12. In the present case, the issuance of the cheque and the dis- honour thereof is not in question. Though the accused denied his signatures on the cheque in question, the fact that he admitted it was given to son of Usha Vij (in his plea of defence as well as application u/s 145(2) NI Act) renders the question nugatory, as the issuance of unsigned cheque does not make any logical sense. Moreover, though the accused has not admitted the receipt of legal notice, the same cannot be taken as a defence at this stage. In this regard, reliance is warranted upon the judgment of Hon'ble Apex Court in CC Alavi Haji Vs. Palapetty Muhammed & Another (2007) 6SCC 555 wherein it was held that when the drawer of cheque raises an objection that he never received legal notice U/s 138 NI Act, he can, within 15 days from receipt of summon from the court, make payment of the cheque amount. In case he does not do so, he cannot complain that there was no proper service of legal notice. In view of the said judgment, it is sufficiently clear that the defence of inadequate service of legal notice cannot be taken at this stage.
Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 6 of 10GARIMA The court finds merit in the submission of Ld. counsel for complainant that presumption of valid service of legal demand notice arises against the ac-
Digitally signedcused, if not by legal notice sent through post, by service of summons issued by GARIMA by the court.
Date:
2026.01.22 15:38:37 +0530 13. The only tenable defence taken by the Accused is that the cheque in question was not issued by him in discharge of any legal liability as he had not received any sum of Rs. 10,00,000/- from the complainant and has not executed affidavit Ex. CW1/DX1. It is a well settled principle of crimi- nal jurisprudence that a criminal trial proceeds on the presumption of inno- cence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden to prove is on the com- plainant/ prosecution to prove the guilt of the accused. Also, the standard of proof is beyond reasonable doubt. However, in offences under section 138 of the Act, there is a reverse onus clause contained in sections 118 and 139 of the Act.
14. Section 118(a) of the Act provides that until the contrary is proved, it shall be presumed that "that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, in-
dorsed, negotiated or transferred for consideration."
15. Further, Section 139 of the Act lays down that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
16. Thus, section 139 of the Act puts the burden on the accused to prove his defence. However, the accused has to prove his defence on the balance of probabilities and not beyond reasonable doubt. Once the pre- sumption is displaced, the accused is liable to be acquitted. The guiding principles have been laid down by the hon'ble Apex Court in the case of Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 7 of 10 GARIMA Basalingappa vs Mudibasappa 2019 (5) SCC 418 in this regard which are as follows:
Digitally signed Once the execution of cheque is admitted Section 139 of the Act by GARIMA mandates a presumption that the cheque was for the discharge of any Date:
2026.01.22 debt or other liability. 15:38:42 +0530 The presumption under Section 139 is a rebuttable presumption and
the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
17. In the present case, since it has already been determined that the cheque bears the signatures of accused, in view of the above-mentioned principles, the only question which remains to be determined by the court is whether the cheque was issued by the accused qua any legally enforceable liability or not, i.e., whether the accused has been able to rebut the presump- tion u/s 118 r/w Section 139 of NI Act.
18. In the present case, the case of the complainant is that cheque in question has been issued by the Accused for repayment of the sum of Rs. 10 lakhs taken by accused for availing NOC from residents of the property in question, for the purpose of construction. The accused, on the other hand, has claimed that the cheque in question was never issued by him in favour of complainant and that he had not taken any such sum from the complainant. It is further the case of accused that he had given the cheque in Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 8 of 10 GARIMA question to the son of Usha Vij for some other purpose. It is lastly the case of accused that the cheque has been misused by the complainant.
Digitally signed 19. It is pertinent to mention that the stance of the accused has by GARIMA Date: remained fairly consistent throughout the trial. The accused has attempted to 2026.01.22 15:38:48 raise a doubt in the case of complainant by way of cross-examination of the +0530 latter's witnesses and by pointing out deficiencies in the case of complainant. firstly, the MOU relied upon the complainant for proving the agreement between the parties is evidently not signed by the accused as a party and the same has been signed by the accused in the capacity of a witness, if at all. Since the accused is not party to the same, complainant cannot claim accused owed him the cheque amount on the basis of the said document. Similarly, the affidavit Ex. CW1/DX1 whereby the accused allegedly admits his liability towards the complainant is conspicuously vague and insufficient to establish the liability of accused towards the complainant. Why the complainant would give a sum of Rs. 10 lakhs to the accused just to obtain NOC from 2 residents of the property in question has not been explained at any stage. The agreement in itself seems unclear. No explanation has been afforded qua existence of 2 return memos and tampering on one of them. Admittedly, the money was given after withdrawal from FD, however, complainant refused to produce the relevant documents before the court. It is beyond the comprehension of this court as to why the complainant refused to bring the said documents though the same would have been in his favour. The court is bound to draw an adverse inference against the complainant on the basis of this conduct. The deficiencies and facts as above discussed are sufficient to raise a doubt in the case of complainant qua the existence of legally enforceable liability.
20. In these circumstances, it is safe to conclude that the accused has successfully raised a doubt qua the aspect of legally enforceable liability and onus is on the complainant to prove his case beyond reasonable doubts. He can, now, not take recourse to the presumption u/s 118 r/w 139 of NI Act to prove his case. Coming to the merits of the case of complainant, as discussed above, the advancement of the sum of Rs. 10 lakhs has not been proved beyond reasonable doubt. Considering all the above-mentioned Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 9 of 10 lacunae in the case of complainant, it is safe to conclude that he has not been able to prove his case beyond reasonable doubts.
21. In these circumstances, in my considered opinion, the accused has been able to raise a probable defence and has been able to raise doubt in the case of complainant. The complainant has not been able to prove beyond reasonable doubt that the accused has committed an offence punishable U/s 138 NI Act. In view of the aforesaid discussion, the accused Kamal Mahey is hereby acquitted of the offence U/s 138 NI Act.
Digitally signed by GARIMA Date: ANNOUNCED IN THE OPEN GARIMA 2026.01.22 COURT ON 22nd January, 2026. 15:38:54 +0530 (Garima Jindal) Judicial Magistrate First Class-06 North District Rohini Courts, Delhi/ 22.01.2026 Ct.Case. 9924/2016 Hemant Garg Vs. Kamal Mahey Page 10 of 10